The art of the squeal: Learning from Congress's mistakes when questioning Cohen

Today’s testimony from former Trump lawyer Michael Cohen before the House Oversight Committee has been analyzed from every angle, so there’s little to be added. I noted a few missteps made by the members of Congress (many of whom are lawyers) who questioned Cohen, however, and it’s helpful to discuss those.

1) Don’t cross-examine crossly

Every law student who takes a trial practice class has heard this advice repeatedly, and with good reason. When you’re examining a witness who is not favorable to your side, it’s important to remain calm and professional. If you’re hostile and full of bluster, it becomes clear to the jury (or, here, the public) that you are not confident in your line of questioning. If the law and/or the facts are in your favor and you’re well-prepared, there is no reason to bloviate. If you raise your voice, appear hostile, or slam your hands on the table, you’re sending a clear signal that you’re sinking.

2) A witness with unclean hands

The Republican members of Congress were not the only bad actors here, however. Cohen’s testimony was favorable to the Democrats’ position, but there was no need for the Democrats to treat Cohen with extra friendliness. With a shady witness, such as a criminal co-conspirator, it’s a mistake to appear sympathetic to the witness. He’s done some bad things, and we’re not supposed to be his friend. A stern, businesslike demeanor signals that we don’t approve of this witness’s past actions, but we still need information that only he can give us.

3) Impeaching the witness

When a witness is giving damaging testimony, of course you want to show that the witness is not credible. Republicans tried to do this, but they persisted in making this grievous error: You cannot impeach a witness by using misdeeds to which he has already admitted. Everybody knows that Cohen is a convicted felon who, among other things, lied to Congress. It’s not helpful to continue to point that out. When you do this, the result is always: “Yes, I’ve done bad things. I’m a criminal. I lied before. You already know that.” If you can’t find novel ways to undermine the witness’s credibility, you’re just wasting time and distracting from your key points.

Further, when the Republicans kept harping on these points, everyone noticed that they were more concerned with impeaching Cohen than with eliciting testimony that could be helpful to Trump. The obvious conclusion is: Trump’s long-time lawyer and close business associate cannot offer any information favorable to Trump.

4) You’re one of us

Speaking of, the GOP strategy in the hearing and thereafter is to discredit Cohen. On social media and in the press, the GOP continues to point out that Cohen “is a convicted felon who has consistently engaged in deceptive and misleading criminal behavior including tax evasion, lying to financial institutions, and lying to Congress.”

Again, everyone already knows this, so the GOP’s strategy has three calamitous side effects: 1) Because Cohen was Trump’s close business associate for many years and because he was the GOP’s deputy finance chair until eight months ago, we wonder about the judgment of Trump and the GOP in continuing to work with him so closely for so long. Oddly, hours after Cohen’s testimony, Cohen’s profile was still live on the GOP’s main website. 2) We’re reminded that Cohen lied and committed crimes on behalf of (and probably at the direction of) Trump. We accept testimony from criminal co-conspirators regularly, so it’s odd to pretend that this is unusual. 3) We notice that the GOP is unable to offer any credible counterarguments to refute Cohen’s testimony.